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An Introduction to Shi'i Law a bibliographical study Hossein Modarressi Tabataba'i
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An Introduction to Shi'i Lawa bibliographical studyHossein Modarressi Tabataba'i

An Introduction to

shr6rL

~ W

a bibliographical study

Ithaea Press London 1984

0 Hossein Modarressi Tabitabi'i

ISBN 0 86372 015 3 First published in 1984 by Ithaca Press 13 Southwark Street London SEl 1RQ

FOREWORD

The Shi'i legal system, which is one of the two major divisions of Islamic law, is a developed integrated system with a long continuous tradition of innovation. As the system has always been open to new ideas, and as

Typeset by Barbara Daykin Printed&

Gloucester

criticism and original contributions were welcome and encouraged, it grew bound in Great Britain by into and continues to grow as a developed, thriving body of legal thought. Many S h i ' i jurists in the past were at the same time outstanding philosophers, and through them many elements from Islamic logic and philosophy were introduced into, and discussed in, S h i ' i law and jurisprudence. This process resulted, on the one hand, in the appearance of new and highly meticulous legal analyses in S h i ' i law and jurisprudence, and contributed, on the other hand, to the development of Islamic logic and philosophy. S h i ' i legal works, and in particular thosc of the last two centuries a r e , therefore, of significant value not only for their legal analyses but also for thleir evaluation and criticism of certain traditional points of view in logic and philosophy as studied in thc Islamic world. The intention of this work is to give the general outlines of S h i ' i law. It is arranged in two parts. In the first part a short description is given In the second p a r t , a list of of the contents of S h i c i law and jurisprudence, together with a brief discussion of its historical development. some Shi'i comprehensive legal works and monographs is given to provide students of this legal system with essential information about references that should be consulted in any serious study of this subject. The author would like to thank Professor W . Madelung, ProfessorA . K . S. Lambton and Mr. Albert Hourani who read the first part of this

Biddles Ltd Guildford & King's Lynn

work and offered valuable suggestions for its improvement.

CONTENTS

Abbreviations Transliteration P A R T ONEGENERAL S T R U C T U R E OF

s ~ i 'LAW i

1 2 713

Chrpter o n e C h a p t e r Two Chapter Three Chapter Four

: THE:

s ~ i ' LEGAL i

SYSTEM AND ITS SOURCES

GENERAL REMARKS ON SHf'f JURISPURDENCE

: T H E OUTLINES O F:

SHT-7

LAW

THE PERIODS O F S H i ' i LAW PART TWO MAIN WORKS ON S H ? " ~LAW

23

Chap'ter Five

:

SOME COMPREHENSIVE WORKS A S y s t e m a t i c Legal Works B Collections of FotwZs C Miscellaneous Works

Chapter Six

: SOME MONOGRAPHS

A GeneralB On A c t s of Devotion

C On Contracts D On Unilateral Obligations E BIBLIOGRAPHY INDEX On 'Rules1

ABBREVIATIONS

9shklK

= = =:

hijr? qomor7 hijrT shams? kitCb t h e catalogue of t h e l i b r a r y concerned AghZ B u z u r g , 01-DharT'a ilC ta~CnTf01-ShT'a Encyclopoedio of Islam (second edition) Nashriyya-yi KitCbkhCno-yi Morkazi-yi DCnishgCh-i Tehran nuskhohCy-i k h o t t 7 d a r bCra-yi

cat.

ABFl Nosh.

= = =

References in footnotes a r e given b y a u t h o r s a n d , if n e c e s s a r y , b y a s h o r t title of thc work. The full titles a r e t o b e Sound in i h e bibliography u n d e r t h e a u t h o r ' s name o r u n d e r t h e s h o r t title i l the work i s anonymous. Likewise t h e libraries a r c r e f e r r e d in t h e second p a r t b y a s h o r t title a n d t h e full names a n d details of their catalogues a r e l o be found in t h e bibliography.

TRANSLITERATION The system u s e d m t h e Encyclopaedia of Islam h a s been a d o p l c d , wlth t h efollowing exceptions:

c19

1

9ch

E

There a r e two more points t o bc noted h e r e : ( 1 ) For well-known geographical names t h e common spellings h a v e been preferred.(2)

The definite article h a s been omitted from t h e beginning of t h e names

in all references in t h e footnotes, except where i t i s followed b y an adjective with t h e article.

Part One General Structure of Shi'iLaw

THE

SHT'T LEGAL SYSTEM AND ITS SOURCES

3

prevalent Shi'i school, follow the opinions of their twelve Imams, especreason Chapter One ially the sixth, AbG 'Abd Allah Ja'far b . Mubarnmad al-sadiq, and for this their legal school is also known a s Ja'farT.

***

The Q u r ' i n , Tradition (sunno), the consensus of the Shi'i jurists (ijmii') and reason ('oq1)l form the sources of Shi'i law. The Q u r ' i n , in its apparent literal sense, has shaped the spirit and THE S H ? ' ~ LEGAL SYSTEM AND ITS SOURCES foundation of S h i ' i law. The Tradition, i . e . the statements, deeds and tacit consent of the Prophet and the Imams, must be handed down be reliable narrators. As a doctrinal system, Shi'ism represents a particular tendency of Islam shaped by a chain of theologico-historical analyses. The YadTth alThaqaloyn, a tradition which was handed down by both Shi'is and Sunnis from the Prophet, according to which the Prophet called on Muslims to follow the Qur'an and his own Family aftcr him,' was, along with a number of other traditions, reasonings. In religious matters, Shi'ism has generally based its views on the instructions of prominent members (Imams) of the Prophet's family. The main difference between Sunni and Shi'i legal schools is the manner in which they received the Prophet's Tradition and in their legal sources. Whereas Sunnis received Tradition as transmitted by the Prophet's companions, Shi'is received it through his Family. In another respect, whereas Sunni legal schools follow the juridical opinions of some jurisThe Twclver Shi'a which is now the The common sources of the four Sunni legal schools are: the Qur'an, Tradition, ijmii' and qiyiis. Opinions differ about a number of other sources which have been added by some of the schools to those four. IjrnZ' is a source on its own in the Sunni legal system. Qiyiis is the application of the precept of a certain legal case to a similar one through analogical reasoning. The S h i ' i s maintain that such an application is possible only where there is a basic common denominator between the two cases inasmuch as one can be certain that the same reason which is behind the precept in the original case, covers the other case as well (see Karaki, Tor7q istinbiir a/-abkijm, p . 17). It should be noted that these are the sources of the predominant UzClT school of S h i ' i law. The A k h b S school resorted only to Tradition. The earliest legal work in which the four sources above are mentioned with the same order is Ibn I d r i s al-villi's 01-Sarii'ir, p . 3. The early S h i ' i u$Cl works did not usually mention reason as a source of law. See further Muvaffar, 11, p . 122. See Muvaffar, 11, p . 107. 9 s will be explained later, reason, in S h i ' i law, is also employed as the root and original source of this tendency which was later strengthened by further theologico-philosophical and historical In respect to this reliability, the doctrinal views of the transmitters are considered irrelevant. A tradition handed down by a reliable non-Shi'i is viewed as sound and acceptable just as one transmitted by a veracious Sh i 'i . IjrnZ', i . e . the unanimity of the views of all S h i ' i jurists on a certain legal question, is not a source on its own, but it can become a means through which the opinions of the Imams may be discovered. This function of ijmii' has been explained in various ways, up to twelve. The most popular among these in contemporary Shi'i law holds that since ijrnii' is the unanimity of the views of 'all' S h i ' i scholars, it naturally includes the views of those scholars who lived in the time of the Imams or the period quite close to it. ImSms and knew their opinions quite thoroughly. normally demonstrates the view of the Imams. By 'reason1 as a source"or S h i ' i law is meant categorical judgments Many of these were close companions of the The consensus of these

very early jurists, most of whom were absolute followers of the Imams,

consults of Medina and Iraq, Shi'is Follow the opinions of their Imams, who were descendants of the Prophet.

See Ibn Sa'd, 11, p . 194; Abmad, 111, pp. 14, 17, 59, I V , p . 371, V, p p . 181-2; Muslim, 11, pp. 237-8; Tirmidhi, 11, pp. 219-20; Nasa'i, p . 93; Darimi, 11, p 310; Bayhaqi, 11, p . 148, VII, p . 30, X , p . 113; Bakim, 111, pp. 109-10, 533; Khatib, 111, p p . 255, 258; TabZwi, 11, p . 307, I V , p . 368; Mundhiri, 11, p . 199; Tabarini, I , p p . 131, 135; aluakim alF'l'irmidhi, p p . 68-9; Baghawi, V , pp. 593, 600; Ibn al-Athir, I , p. 187; Ibn al-Turkumani, VII, p . 31; Qasjalini, VII, pp. 4-8; Haythami, I X , pp. 164-5; 'Asqalani, IV, p . 6 5 ; Ibn 'Asakir, I , p. 45; Maqrizi, p . 38; SuyGti, Ibya', pp. 11-30; Muttaqi, X V , p p . 91, 122-3. Independent works are written about this tradition, among them a treatise by Qawiim al-Din al-Wishnawi (YodTth 01-Thaqoloyn, Cairo, 1374q). Mir Barnid Fusayn al-Laknawi devoted a whole volume of his 'Aboqiil a/-anwiir to the chains of authority of this tradition (see the Arabic translation of this book, Vol. I , in which the tradition is quoted from approximately two hundred Sunni sources). See for instance Sharaf al-Din, pp. 42-51, 130-227.

4

A INTRODUCTION TO N

SHT'T

LW A5.

THE S I I ~ LEGAL SYSTEM AND ITS SOURCES '~ a/-WrSfT, by Mubammad b . Murla(li al-Kishani , known a s Mubsin al-Fayg ( d . 109111680) 6.7.

5

A clear instance is the judgment of practical reason that justice i s good and injustice is evil. In S h i ' i u$Gl al-fiqh there i s a principle which states that whatever i s ordered by reason, is also ordered by religion (kull mii bakam bih a l ' a q l , hakam bib 01-shar'). In accordance with this principle, which i s known a s the 'rule of correlation ' (qii'idat 01-muliiramo), religious rules may be

drawn from both pure and practical reason.

WosF'il al-ShT'a, by Mubammad b . Basan al-Ijurr albST\mili ( d . 11041 1693) Bibtr ol-an wtr , by Muhammad B i q i r b . Mubarnmad Taqi al-Majlisi ( d . 111011699) Mustodrok a/-Wosii'il, by Uusayn b . Mubarnmad Taqi a l - N t r i ( d . 132011908)1

The correlation between the obligatoriness of an act and the obligatoriness of its prerequisites (muqaddamot 01-wiijib), or between prescribing something and prohibiting i t s opposite (mas 'alat 01-(iidd), o r , the impossibility of combining command and prohibition in a single case from a single standpoint (ijtimii' al-amr wa'ln a h y ) , are all rational precepts in the methodology of S h i ' i law and sources based on pure reason in the juridical efforts to discover legal rules.

inferred from the sole verdict of reason.

8.

The f i r s t four of these books are collectively known a s 'the four books1 (01-kutub al-arbo'o). In S h i ' i legal literature these four hold the same position that, the six famous collections of Sunni traditions (al-kutub 01s i t t a ) have among S u n n i s . The most popular legal work of reference i s Wasii'il ai-5hT'a which gathers the legal traditions contained in the 'four books' and in many other sources, and since it i s limited to traditions concerned with legal subjects, it is the most convenient reference handbook for every jurist. The acceptability of any of the traditions of these books is subject to certain conditions. The reliability and honesty of all the narrators of a This is done by chain of transmitters of a tradition must first be proved.

***Thc traditions handed down from the Prophet and ImZms, which constitute the most important source for S h i ' i law, collections.1.

are assembled in special

The most renowned of these, which a r e the usual reference

works for jurists, are the following: K. 01-Ko%, by A b t J a ' f a r Mubammad b . Ya'qtb al-Kulayni ( d . 3291941)2.

a branch of scholarship known a s 'ilm a/-rijtl (='ilm rijbi aoibadi?h) which investigates the narrators of the traditions and their biographies. Traditions are graded and divided in accordance with the levels of their reliability,

K . Man 1 Yabduruh al-faqTh, by Mubammad b . 'Ali b . BZbawayh ;al-Qummi, known a s al-Sadiiq ( d . 3811991-2) TahdhTb al-abkiim, by Mubarnmad b . JJasan al-TEsi, Shaykh alTi'ifa ( d . 46011067) al-lstib$iir, by Mubammad b . @asan al-TGsi

' on the basis

of specific principles found in another branch of

3.

4.

the means for thinking, in which sense it simply means rational argument. This sense of reason i s described in the traditions of the Imams a s the only means to discovcr realities (see Karijaki, p . 70). See Mubaqqiq, Mu'tabar, p . 6; Shahid I , Dhikrt, p . 5; idem, Qawb'id, p . 25; Miqdid, TanqTb, fols. 2b-3a; Qibib al-Madirik, Hidiiyot al-liilibii? , fols. 2b-3a; Q a l i f i , Kashf ol-fawb'id, p . 130. Mubarnmad B'aqir al-Sadr maintains that 'reason' i s a potential rather than an actual source for S h i ' i law. He says that although, according to the methodology of S h i ' i law, reason can on i t s own discover an injuriction and guide toward a certain religious precept, this has never been actualized in practice and all religious commands which can be discovered through the categorical verdicts derived from reason are to be found in t h e Qur 'an and Tradition (Mubammad Biqir al-Sadr , Fatiiwii, I , p . 98). This i s because the traditions indicate duties in particular cascs with details, whereas the Qur'Zn usually has general rules.

Some other major comprehensive collections of S h i ' i traditions a r e : Jawiimi' al-kalim by Muhammad b . 'Ali al-Jaz'a'iri , ' A w5lim 01-'ulGm wa'lmo'brif by 'Abd Allih b . N t r Allih a1-BabrZni, Jiimi' al-rna'iirif wa'lobktm by 'Abd Allih b . Mubammad Ri(li Shubbar al-ilusayni al-Kazimi and Jbmi' obbfith ol-sh7'a by u u s a y n b . 'Ali al-TabZtabi'i al-Burtjirdi. See Shahid I I , D i r t y o , p p . 62-81; Abu'l-Qisim b . JJasan Yazdi, I , p p . 44-61. The main S h i ' i works on this discipline a r e : K. Ma'rifat al-rijiii by al-Kashshi , K . a/-pu'afii' by al-Ghaai'iri , K . a/-Rijbl by al-Najishi , K . al-Fihrist and K . a/-Rijiil by Muhammad b . IJasan a l - T t s i . _Some important later works a r e : Ma'iilim a i ' u l o m 5 ' by Ibn ShahrZshGb, IQItb alishtibth and KhuiF$at 01-aqw8 by alk'AllZma, K. al-Rijiil by Ibn Diwkd, 01-TobrTr 01-TFwGsT by Sibib al-Ma'Zlim, Monhaj al-maqiil by Mubammad b . 'Ali al-Astaribzdi , Naqd 01-riitl by al-Tafrishi , Majmo' al-rijiil by alQ u h p a ' i , VFwT al-maqF1 by 'Abd al-Nabi al-Jaza'iri , Jiimi' a/-ruwtt by Mubammad al-Ardabili , Muntahb a/-maqiil by A b t 'Ali , al-Fawii'id alrijbiiyya by Babr alk'Ultm, TonqTb al-moqtl by 'Abd Allih al-Mimaqini, Qtmiis ol-rijiil by Mubammad Taqi a l - T u s t a r i , and Mu'jom_rijbl ol-bafith by al-Khu'i. For other S h i ' i works on this subject see AghZ Buzurg, Mugoffii ol-maqiil fT mu$anniF 'ilm al-rijtl ( T e h r a n , 1959). See Shahid I , Dhikrb, p . 4; Ibn Fahd, Muhadhdhab, fol. 2b; MiqdSd, TanqTb, fol. 3a; Karaki , TorTq istinb5t a/-abkbm, p . 10;

'

scholarship known, in S h i ' i literature, a s 'ilm a/-diriiya , ( = 'iim diriiyol 01-bofith).' On these bases, many traditions of the above sources are n o t , in t h e view of the jurists, sound and reliable.

***The inference of legal precepts, from t h e four aforementioned sources of S h i ' i law (the Q u r ' i n , Tradition, ijmii' and rcason) is carried out through a kind of logical rcasoning which, in Islamic terminology,is called iitihzd. According to S h i ' i teachings, it is always possible for scholars In confronting

Chapter Two

GENERAL REMARKS O N

SHT'T JURISPRUDENCE

to practise this kind of rational argument in Islamic law, while S u n n i s restrict it to sornc scholars of the early centuries 01 Islam. any legal problem, every S h i ' i jurist must personally investigate these legal sourccs to take his own decision about i t . Imitation of the opinion of a muitohid, however great he i s , by another mujtohid in legal matters is uniawiul. The inference and discovery of legal norms (istinbiit) from the afore-

mentioned sources, which a r e in some cases contradictory, follow particularrules which are explained by a special branch of scholarship known a s ugiii oi-fiqh (principles of law). This discipline i s a collection of gcneral rules and regulations on how to deducc positive precepts from the sources. Some of these rules and principles have been borrowed from other disciplines such a s logic, philosophy, theology and philology. In the early periods of Islam, S h i ' i scholars wrote treatises on sornc topics of usGI 01-fiqh, a s i s mentioned in the sources. But t h e oldest b extant work on usiil al-fiqh by a S h i ' i scholar i s o l T a d i ~ k i r a i - u ~ i i lalfiqh by al-Shaykb al-MuEd, Mullammad b . MuQammad b . al-Nuemin al-Baghdidi ( d . 441311022), a summary of which i s included by al-Karajaki in h i s book Kanr al-fowz'id. Next, there i s a relatively voluminous work on this subject by al-Sharif al-MurtaGZ, 'Ali b . uusayn al-Miisawi ( d . 436110441, entitled

Shahid 11, Diriiya, p p . 19-61; IJusayn b . 'Abd al-samad, Wu7Gl 01-akhyiir, p p . 20-56; $iQib al-Madirik, Hid5yol a/-tiilibTn, fol. 5a; Bahii' al-Din al-'Kmili, WafTra, p p . 4-5; idem, Mashriq 01-shomsayn, p . 269; DZmZd, Rowiishib, p p . 115-204; B i h b a h i n i , To'lTqiit, p p . 5-9; Abu '1-Qisim b . Hasall al-Yazdi , I , p p . 3-44; MimaqZni, Miqbiis, p p . 35-105. Some main S h i ' i works on this subjcet a r e : 01-Diriiyo and Sharb Risiilat oi-diriiyo by al-Shahid al-ThXni, Wusiii_al-okhyiir by uusayn b . 'Abd al-Samad, ol-Wa[7ro by Bah2' &Din al-'Amili, a/-Rawiishib 01samiiwiyyo by al-Diimiid, Towfii, 01-moqiii by 'Ali al-Kani; MiqbCs 01-hidiiyo by 'Abd Allih al-Miimaqini, and Samb' a/-maqiil by Abu '1-Hudii al-Kalbisi. Also Fowii'id-i shiiriyo by a l - F a r i h i , Lubb 01-Lubiib by Muhammad Ja'far al-Astariibiidi , Qawii'id a/-bodTth by al-Ghariii , and Qiyii' a/-diriiyo by PiyZ' al-Din al-'Allarna. 411 the above-mentioned principles are according to the Usiili school of S h i ' i law. The Akhbiris rejected iitihiid and prohibited the practice of rational argument in law. There a r e some objections l o the practice of iftihiid in the traditions from the ImZms and in early S h i ' i works too. Most of t h e s e , however, r e f e r to the Sunni version of iitihiid which includes qiyiis and isLibs6n.

a/-DharTCoilii ugZl a/-shor7'o. of early periods.

The book of Shaykh al-Ti'ifn hlul~ammad

b . uasan al-Tiisi, 'Uddat 01-uiG14 is the most famous work on u ~ G 01-fiqh l It was a text-book in S h i ' i centres of learning for a long time. Another r a t h e r old source i s t h e relevant chapter of a/-Chunya See IJasan al-sadr, p p . 310-12. It will be seen later on in this work that a group oS early S h i ' i jurists, who were contemporaries of t h e Twelve Imams, used rational argument and t h r rules of u$El a/-fiqh in t h e inference of legal precepts. K a r i j a k i , p p . 186-94 (see also Shaykh, 'Uddo, p . 2 ; shoykh-i TiisT, 111, p . 373; Brunschvig, p p . 201 f f ) . Yiidniimo-yi

Edited Tehran, 1967-9. Al-Murtadi had written independent treatises on almost all the topics of ugiil 01-fiqh (see his introduction to 01-DharT'o, I , p . 2). He also discussed t h e ugGl topic of okhbiir 01-iibiid in his a/D h a k h p o , formally a work of koliim theology (see Shaykh, 'Udda, p p . 33-71, Edited Tehran, 1313-14q and Bombay, 1312-18q.

GENERAL REMARKS O SHf'f JURISPRUDENCE N by Ibn Zuhra al-Ejalibi ( d . 58511189-90). K . a/-Mogiidiru j i i l 01-fiqh by

9

development.

It was, however, revived with the appearance of a prominent

Sadid al-Din Mabmiid al-uimmasi, the Shi'i scholar of late 6thll2th century is not extant, but some paragraphs of it are quoted in Ibn Idris's olSarii'ir.

scholar in the last third of the 12thl17th century, Muhammad Biqir b . Muhammad Akmal al-Bihbahini , known as 31-Wahid ( d . 120511791), who strove vigorously to combat the influence of AkhbZrism and to propagateu j i i l a/-fiqh.

Next, the works of al-Muhaqqiq J a ' f a r b . Basan al-villi ( d . 6761

1277) such as Ma'Zrif a / - w u g i i i , and then those of ai'AllZma uasan b. Yiisuf b. al-Mutahhar al-villi ( d . 72611325) such as TahdhTb 01-usiil, Mobiidi' 01wu$Zl and NihZyat a / - w u s i i l contributed to the evolution of this discipline.

His students also devoted themselves to the same cause.

Works such as QawiinTn a / - u g i i l by Abu '1-QZsim b . yasan al-GilZni, known as al-Mubaqqiq al-Qummi ( d . 123111816), a/-FugCl by Muhammad uusayn b . Muhammad Rabim al-Igfahini ( d . 1250-411834-9), Hidiiyotal-mustarshicfTti by Muhammad Taqi b . Muhammad Rabim al-Ihfahini ( d . 124811833),MafiitTb 01-ugiil by Muhammad b . 'Ali al-Karbali'i a l - T a b i t a b i ' i , known

Following this period, many commentaries ( s h a r b ) and annotations( b Z s h i y o ) appeared on the works of al-'Allima,

Aghi Buzurg al-Tihrini's a/-DhorT'a ilZ t a s i i n i f a/-ShT'a.

some of which are listed in Two of the

most famous of these are the commentaries known as a l - p i y i ' i and al'Amidi5 which had a notable influence on the development of S h i ' i u$Ci 01-fiqh. AI-Shahid al-Awwal Shams al-Din Muhammad b . Makki 31-'Amili ( d . 78611384) assembled these two commentaries, together with some useful notes by himself, in a volume entitled Jtimi' 01-boyn. vasan b . Zayn al-Din al-'Amili ( d . 101111602) paved the way for concentrated discussions on u $ Z l a / - f i q h by composing a systematic and well arranged text as an introduction to his legal work Ma'iilim 01-dTn Thereafter, numerous commentaries and annotations were composed on this t e x t , which has been a text-book in S h i ' i centres of learning since the I l t h l l 7 t h century. During the l l t h l l 7 t h century, the most significant u l i i T views were put forward by Yusayn b . Rafi' al-Din Muhammad al-Mar'ashi alIVlZzandarini ( d . 106411653-4), one of the authors of the commentaries to M a * i ; l ~ m . Zubdot 01-ugiil by Bahi' al-Din al-'Amili ( d . 1030.1621) andWiifiyat 01-ugiil by 'Abd AllZh b . Muhammad al-Tun7 ( d . 107111660-1) are

as al-Mujihid'(d. 124211827) and p a w i i b i t a / - u g Z l by Ibrihim b . Muhammad Biqir al-Qazwini ( d . 126211846), all of which were written by the pupils and followers of al-Bihbahini's school, were instrumental in the progress and the spread of ugijlT doctrine. Shaykh Murtaai 31-Angiri , the great scholar and legal theoretician ( d . 128111864), systematically revised and reconstructed the methodology of S h i ' i law, and extended the horizons and dimensions of this discipline. The collection of his treatises on u $ i i l a / - f i q h , entitled Rasii'il or F a r i i ' i d01-ugZl is still used as a text-book in traditional academies of S h i ' i law.

In the school of al-Ansiri, which has continued up to the present date, the principles of ugiii 01-fiqh have been continuously subjected to scrupulous and minute examination by his disciples and followers. As a result of the emergence of great scholars such a s Muhammad Kizim al-Khurisini ( d . 132911911) author of Kifiiyayol 01-u$iil, Muhammad vusayn al-Ni'ini ( d . 135511936), PiyZ' al-Din alFsArZqi ( d . 136111948) author of MoqiilZt01-ugCl, and Muhammad Ejusayn al-Igfahini al-Kumpini ( d . 136111942)

among the best-known Shi'i u $ Z l texts of this century. In the 12thl17th century, the A k h b K school which repudiated the discipline of u j Z l a / - f i q h , became predominant and inhibited its further Edited Tehran, 1276q (in the collection of 01-Jowiim~' a / - f i q h i y y a , p p . 523-49). AB, XXI, p . 95. "bn Idris, pp. 409-10. XIII, pp. 165-70; XIV, pp. 53-4. AB, VI, pp. 54-5;

author of NihFyot a / - d i r i i y a , and through their incisive intellectual efforts, S h i ' i ugiil 01-fiqh is now the most elaborate in Islamic scholarship, and is still subject to discussions and open to further development, changes and perfection.

**the Tradition, consensus and reason.

:x

As mentioned before, S h i ' i law has four basic sources: the Q u r ' i n , The discipline of u j c l 01-fiqh aims to show how the legal norms can be deduced from those four sources. In some cases, however, the law cannot be directly discovered by resorting to these. Special general principles have therefore been laid down for Thus, S h i ' i u$Cl a / - f i q h is divided such circumstances, and these are known in S h i ' i jurisprudence as ugZl' a m o l i y y a (procedural principles).

That is Munyat a/-IabTb by p i y i ' al-Din 'Abd Allah b . Majd al-Din Muhammad al-A'raji al-gusayni, and S h a r b a/-TohdhTb by 'Amid 31-Din 'Abd al-Mutialib b . Majd al-Din Muhammad al-A'raji al-uusayni. These two brothers were the neqphew of alF'Allima, and both lived in the first half of the 8thll4th century (AB, XIII, p . 168). AB, V , p p . 43-4.

into two parts; one part discusses the method of infercnce of legal norms

10

A N INTRODUCTION TO s ~ f ' fLAW

GENERAL REMARKS O SHf'f JURISPRUDENCE N ations of a jurisprudent who must exercise and follow his own decision in legal matters and of those of a jurisconsult whose legal decisions should be followed by the ordinary people who are not able to discover their obligations directly from the sources.

11

from the four original sources; the other part examines the manner of reasoning with the above-mentioned principles. code, the Qur'in and the Tradition, are discussed. In the first part of ugiil a / - f i q h , the rules of reasoning with the written At first there is some

semantic discussion relating to the nature of word-making, the use of words in their metaphorical sense, and similar subjects. Then there is general legal discussion about various implications of the imperative and the negative imperative, general law and exception, absolute and conditional laws, explicit and reverse implication, and ambiguous and clear designations. Next, the validity of the four original sources of S h i ' i law are investigated. Meanwhile the nature of law, legal judgments arrived at through pure reason, and the valid means for arriving a t knowledge of legal obligations are discussed. In the second part of S h i ' i u$El a / - f i q h , the legal basis and the scope of validity of the procedural principles are examined. These are the four principles of b o r i i ' o (exemption), i b t i y i i l or ishtighzl (prudence), tokhyTr (option) and istisbiib (continuance). obligation is not known. They cover all cases where the real Otherwise the first principle-

***What follows is a selected bibliography of modern S h i ' i u$El 01-fiqh developed during the last one hundred years. AL-ANSART:Motiirih ol-onziir (his lectures complied by Abu '1-Qisim al-Tihrini),

These are the most

important works of the school of al-Angiri, given in chronological order:

-

~ e h r a i1308~ ,Farii'id 01-u$Gl = ol-Rosii'il, edited many times ( e . g . Tehran, 1296q)

AL-ASHTIY~N~: Bobr 01-fowz'id ( a commentary on al-AnsZrils F a r i i ' i d a/-u$Gl), Tehran, 1300, 1314-15q

HADT AL-TIHRZNT:Moboijot 01-'ulornii' , Tehran, 1318-20q

'ALT B. FATH ALLAH AL-NAHAWANDT:ToshrTb 01-u$iil a/-kobTr, Tehran, 1316-20q

If the case has a precedence, the same law should

AL-KHURASANT

:

continue according to the last principle.

Kifzyot 01-ugiil, Tehran, 1326-7q, 1341-2q, 1364q Duror ol-fawF'id, Tehran, 1315q, 1318q, 1343q. Al-Maqiiliit a / - C h o r i y y o , Tabriz

excludes any legal obligation where it is not known if there is such an obligation. However, if there is a known obligation, but it is uncertain between two or more options, all must be followed according to the second principle if it is possible. But one option should be chosen according to These four Considerable scholarly the third principle if it is impossible to follow both or all. principles are very important in modern S h i ' i law.

$ADIQ AL-TABRTZT:

, 1317q

'ABD

'AL-KARTM

AL-~A'IR~:

Duror 01-fowii'id, Tehran, 1337-8q, 1344q, 1355q, 1361q, 1372q

AL-NA'TNT-

: A jwod 01-toqririii (hisleclurcs co~mpiled Abu '1-Qisim al-Khu'i), by

Tehran, 1348qFawii'id a / - u ~ i i l (another collection of his lectures compiled by Muhammad 'Ali al-KizimT al-Khurisini), Tehran, 1368q (vols. 1-2) Najaf, 1349-51q (vols. 3-41

efforts have been devoted to elaborating the methods and the conditions of their application. Many logical and philosophical concepts are used and discussed to this e n d , and new logical and philosophical ideas are developed through these discussions. This part of ugiil a/-fiqh expanded significIn earlier S h i ' i works on ugul a / - f i q h , up antly during the last century. these principles. After the two parts mentioned above there is a chapter on conflict between laws, followed in most works by a chapter on the necessary qualificSee Mufid, T o d h k i r o , pp. 192-3; Shaykh, ' U d d o , pp. 296-302, 303-4; Mubaqqia, M o ' i i r i j , pp. 14456; idem, M u ' t a b o r , p p . 6-7; ' Allima, Mobiidi', p . 56; idem, Nihiiyo, fols. 273a-277b; idem, TohdhTb, p . 105; Karaki, TarTq istinbiif 01-obkiirn, pp. 16-17; Uusayn b . 'Abd al-$amad, ' I q d , pp. 14-15, 23-5; $%bib al-Ma'ilim, pp. 227-31; BahZ' al-Din al'Amili, Zubdo, pp. 48, 72.-

QIYA '

A L - D ~ N AL-'ARAQY : Moaiilo? 01-usiil. Naiaf. 13584 (vol. 1 ) . Tehran, 13694 (vol. 2) ~ i h i i ~ 01-ojkiii (his lectures compiled by ~ u ~ a m m a d - T a alot qiBuriijirdi) , Najaf, 1371-7q

to the l0thll6th century, only a few pages or even lines were devoted to

MUUAMMAD IjUSAYN AL-I$FAHANTAL-KUMPANT: - Nihiiyot 01-diriiyo, Tehran, 1343-71q A/-UgZl 'ala 'I-nahj 01-bodi?h, Najaf, 1957 ABU 'L-MAJD AL-I$FAHANT: Wiqiiyoi a/-odhhiin , [ I r a n ] , 1337 q

AL-BURUJIRDTAL-KHU 'f :-

: Nihiiyot 01-u~Gl(his lectures compiled by lJusayn 'Ali al-Muntaziri)

,

Qum, 11377 q ? lMubiidoriit fi u$Cl a/-fiqh (his lectures compiled by Mubarnmad Isbiq Mi~biib 01-u$;l

al-Fayyid), Najaf, 1914(another collection of his lectures compiled by Mulpmmad

12

A N INTRODUCTION TO Sarwar al-Bihsfidi) , Najaf, 1377-86q

SHT'T LAW

AL-KHUMAYNT: - TahdhTb 0 1 - u ~ i l( h i s lectures compiled by Ja'far al-Subbani), Qum, 1373-82q A/-Rasii'il, Qum, 1385q MUVAMMAD RIQA AL-MUZAFFAR: UzGl a/-fiqh, Najaf, 1966 MUUAMMAD BAQIR AL-SADR: - DurEs F 'ilm a/-~$1, Beirut, 1978 - To'iiruCI a/-odillo a/-shar'iyya ( h i s lectures compiled by Mabmfid alHashimi 1 , Tehran, 1396q

Chapter Three

THE OUTLINES OF S ~ i ' i A LW

The subjects of Islamic law (fiqh) have been classified in different forms. In Sunni law, they a r e usually divided into two categories: 'ibiid6t ( a c t s of devotion) and mu'tmoltt (here meaning worldly a f f a i r s ) . Al-Ghazili , the S h i f i ' i scholar ( d . 50511111) in his I b y t ' 'uliim 01-fin1 divided all religious and moral injunctions into four groups, 'ibiidiit,'iidiii (ordinary a f f a i r s ) , munjiytt (what ensures salvation) and muhlikiit (what causes perdition). texts, This classification had some influence on later S h i f i ' i legal and inspired another procedure which divided legal subjects into In o r d e r to justify this latter division, it

four groups: 'ibcddat, mu'rTmalZt, muncikabai (personal s t a t u s ) and jintytt or 'uqiibZt (penal law). the hereafter. is said that the subjects of fiqh concern either life in this world o r life in The subjects related to t h e former state of being are divthose which regulate human relationships ided into three p a r t s :

(mu'tmuliit), those which preserve human kind (muniikabCt) and those which protect both individuals and mankind (jiniiyiit). The subjects related to the latter state of being, i . e . the precepts which should bring happiness and welfare in the next life, a r e 'ibiid6t.

'

The oldest extant systematic codifications of S h i ' i law are found in some works of jurists of the 5 t h l l l t h c e n t u r y . Abu '1-BalZl) al-galabi ( d . 44711055-6) classified, in his K. a / - K c fi '1-fiqh , t h e legal subjects according to t h e religious precepts. of three kinds: IIe considered all religious dues to be ' i b t d c t , by which he meant not only the common acts of

devotion but all obligations including p a r t of the category of mu'iimaliit, GhazZlT, /by;',I , p . 3.

See also Fayd, Mabajja, I , p p . 4-5.

See for example Qaffal, 111, p . 382; Ghazzi, p . 598; BZjfiri, 11, p . 332. See JJaydar , I , p . 15/Mabmasini, p . 24 quoting al-Anqarawi a/-FatZwii 01-onqorawiyya (Cairo, 1281q1, I , p . 1.

'

MuQammad al-XmuE , NaE'fs 01-funiin , p . 146.

14

A INTRODUCTION TO SHf'f L W N A

THE OUTLINES OF

SHT'ILAW

15

muburromot (prohibitions) and abkzm ( r u l e s ) . This latter term refers to all legal precepts which do not impose any religious duty (action or abstention) on Muslims, i.e. which cannot be included in the other two categories.Qiai 'Abd al-'Aziz b , al-Barrij ( d . 48111088) in his 01-Muhodhdhab

considered the basis for separating 'ibi;dzt from other subjects to be the intrinsic beauty and superiority of the act of devotion itself. Na$ir aalDin al-Tusi ( d . 67211274) followed a more philosophical approach and proposed a tripartite classification. He argued that the religious laws concern individuals eithcr as individual bearers of responsibility or as members of the family, or as people in society. The first category is the section on 'ibodzt, the second is the rules included in t, the section on muniikobtt and other parts of m u C ~ m a / t and the third is siyiiszt (penal law). Al-FiQil al-Miqdid (d. 82611423) proposed two other modes of division in the classification of the legal subjects. by 01-Qow?'id3 of al-shahid al-Awwal. Both approaches were inspired One method is based on the belief

divided religious precepts into two categories, those which affect 011 the people and those which do not. The former are 'ibiidot which are general duties and for this very reason precede the rest of fiqh. Another S h i ' i jurist of the samc period, Sall'ar b . 'Abd al-'Aziz al'ibijdat and mu'Zmol~t, then he divided the latter into 'uqcd (contracts) and obk?im, rules.' and then divided abkzm further into jinoyct and other types of A1-MuQaqqiq, inspired by this method, classified fiqh in his 'ibiidzi, 'uqiid (here meaning This Uaylami ( d . 44811056-7) first classified fiqh in two sections:

that in the course of their moral development, human beings must acquire the traits beneficial to human life and character, and reject those which are destructive. traits. Some of these beneficial traits may bring about instant results, others more distant results, depending on the nature of these Acts of devotion belong to the latter category; rules relating to The precepts of penal law aim to combat those This o marriage, transactions, food and drink (a/-of'imo w 'I-oshribo) and the like belong to the former. destructive traits which inhibit the progress of human beings.

ShorE'i' 01-1sli;m into four sections:

bilateral obligations), Tqo'ot (unilateral obligations) and obkiim. method was accepted by jurists who succeeded him.

A1-Shahid al-Awwal justified this classification in his 01-QowF'id by arguing that rcligious

precepts are concerned either with life on earth or life in the hereafter. The former fall under mu'iimalot and the latter under 'ibFdCit. This first category, the mu'Fmo/5t, is in turn divided into two parts since these are precepts which either concern thc undertakings of individuals themselves or those which are not related to the undertakings of individuals. rules, etc. These latter are known as obkEim and include all judicial, penal and inheritance Undertakings too are of two kinds since some are bilateral Al-Shahid offers the same explanation in his Dhikro with the exception that in this book, the basic difference between 'ibCdtit and other categories is that acts of devotion must be practised in order to obey God and move closer to him, whereas other categories do not carry this obligation. ('uqiid) and others unilateral (TqZ'?it).

metho?, thus, divides the subjects of fiqh into three categories. The other mode of classification proposed by Miqdid divides fiqh into six sections. This approach is on the basis that religions have been laid Acts of devotion are the pillar down for the protection of the five basic elements of human life, viz: faith, life, property, lineage and reason. of faith; the criminal law which gives the right of retaliation to the offended person is to create a guarantee for life; regulations concerning transactions regulate financial relations and protect property; of the human race; marriage regulations, related laws and some penal precepts are for the reproduction precepts related to the prohibition of alcohol and the punishment of drinkers of alcohol and the like protect human reason. Moreover, legal precepts are laid down in order to protect the totality of the Islamic system and guarantee its correct application. Kishif al-Ghiti' , Shorb a/-QowC'id, Pol. Za. Na~ir al-Din al-Tiisi , p . 41. Shahid 1, QowZ'id, p p . 4-6. Miqdid, TonqTb, fol. 41; also Jawid al-'Arnili, IV, p . 2. The origin of the second approach can be found in al-Ghazili's 01-Mustozfi and alShitibi's 01-MuwCfoqiit, I , p. 38. See also Abu '1-'Abbis al-UarrinT,

'

Some other scholars

ualabi, K z r , fols. 1-2. See also his Toqrib a/-mo'iirif, fol. 96a, in which he classified all religious duties into actions and abstcntions. Ibn al-Barrij, Muhodhdhob, fol. 123b. Sallir, p . 28. I h i d . , p . 143. Mubaqqiq, Shorz'i', I , p p . 19, 163, 11, pp. 53, 135. See for example 'AllZma, TobrTr, I , p p . 1, 158, 11, p p . 52, 123. See also N i ' i n i , I , p . 33. Shahid I , Qowo'id, p . 4 . See also Miqdid, TonqTb, fols. 3b-4a; Shorb qorrot 01-bobroyn , fol. l b . Shahid 1, DhikrZ, pp. 6-7. See also Jaw'ad al-'Amili, IV, p. 2 ; KalbXsi fol. 2a.

'

'

'

.

16

AN INTRODUCTION TO

SHT'~LW AHe merged kitdb),

A THE OUTLINES OF SHT'i L W The chapters of S h i ' i law, which are called 'books are concerned with various legal subjects.

17

Mubsin al-Faya followed a new approach in his works on law and Tradition such as 01-WX, Mu'tasam 01-Sh7a and MofiitTh 01-sharii'i'. some chapters of fiqh and changed the locations of some legal headings, mostly for the purpose of ordering it according to the human life-cycle. For instance, he put the chapters on death and the deceased, obkCm 01amwdt (which in previous texts were in the k. 01-tohiira, traditionally the first chapter of f i q h ) , at the end, followed by the chapter on inheritance. In this way, he tried to create a new codification for law and Tradition. He divided fiqh into two sections: one on acts of devotion and the social duties (a/-'ibdddt wo'l-siyCsCi) and the other on ordinary affairs and transactions (a/-'iidiit wo'l-mu'iimoliit).

'

( k u t u b , sing.

Together they pro-

vide a catalogue of the personal and social duties of a S h i ' i Muslim. The arrangement of these chapters varies in different texts, but generally the chapters on devotions are located at the beginning, those on transactions in tile middle and those on inheritance and the penal code, at the end. In some Sunni legal works, the reasons for this arrangement are given at the start of some of the chapters." Sunni5 and S h i ' i 6 authors have stated that the reason why they place some chapters before others is that not only are these intrinsically more important but that religion also endows them with an importance above others.

'

Another method, which is inspired by modern western approaches to the classification of legal subjects, divides topics of fiqh into the following categories: I I1 'ibiiddt Property. A. This may be of two kinds: Public property, which does not belong to a person but is allocated for use in the general interests of the community. Private property. The regulations 01 this section are discussed

Q i o i 'Abd alkQAzizb . al-Barrij holds that the arrangement of thechapters is related to the generality of the subjects they treat. According to him, acts of devotion which have to be practised by all Muslims at all times and anywhere, have priority over transactions, executive rules, e t c . , which are restricted by certain conditions. Amongst the acts of devotion, prayer, which is a daily duty for every Muslim and is, in fact, the most regular Islamic duty, together with its requisite ritual purity (fohiiro), come before the other acts of devotion.' Ibn uamza, another S h i ' i jurist of the 6thll2th century, adopting the same view, evaluated the degree of the applicability of each of these acts to devotion, and included a discussion of this in the preface of his work 01-WasTlo.

B.

in two independent parts: 1 . The lawful means of ownership 2. 111 The rules concerning the disposal of property These are of two Personal behaviour and practices, i . e . ordinary affairs which do not concern religious devotions or financial matters. kinds: A. Family law The rules for social relations and behaviour of individuals in the society IV Political subjects in general.

'

Abu '1-Fatb Mu4ammad He tried

b . 'Ali b . 'Uthmin al-Karijaki ( d . 44911057-8) arranged the chapters of fiqh in his legal work called Bustiin like the branches of a tree. to connect the branches to each other so a s to create a natural arrangement See for the use in this context of this term FujGi, fols. 84b-85a, 87b-88a; Shahid 11, Rowdo, I , p . 26.

B.

***

A s was noted before, al-galabi inserted all obligations in the section on devotions, including parts of the sections on Tqii'dt and obkcim. A1-Shahid al-Awwal followed al-Ijalabi in some of his legal works (see especially N i ' i n i , I , p. 33).In al-FayO1s works the penal code comes before the section on transactions. See for instance his MofCtTh, I , p . 14.

p . 455; Zarqa', I , pp. 64-7; Khallif, p . 57.

Zubayli, pp. 359-60;

M a b m a ~ i n i ,p. 2 5 ;

'6

See as an example Tabtiwi , 11, p . 2 . Mubamrnad al-xmuli , Nafd'is, p. 146; FugGl, fol. 89a-b.

See Fayd, MofitTh, I , p. 1 4 ; idem, Wdfi, I , p. 16. See also Na'ini, I , p . 33. As one can guess from the titles of the sections, al-Fay0 was inspired to some extent in his proposal by the method of arrangement of alGhazilT's lbyC' 'ulL7m 01-fin, which was summarized and refined by al-Fay0 in a book named 01-Mobolio 01-boyq'C' fi ibyC' 01-lbyii'. Mubarnmad Biqir al-gadr, FotCwd, I , pp. 132-4.

See for example Mubaqqiq, ShorC'i', I , p . 19; 'AlTama, Tabg~ro, p . 1; Risdlo fi 'I-tahiira w 'I-jalCt, fol. 34a. o Ibn al-Barraj, Sharb Jumol, p. 54; idem, Muhodhdhob, fol. 124. See also Shaykh, Iqtigdd, p . 239; Fugiil, fol. 89. Ibn Jjamza, WosTlo, p. 662.

18 of the topics.

A N INTRODUCTION TO SHT'T L W A In his pattern, the first chapter of each section was a 2.

THE OUTLINES OF S ~ f ' fL W A

19

K . 01-$oliit = prayer.

This chapter includes in some works scientific

Each later chapter in a section was a smaller branch growing from the main one. W do not e know any further details of his pattern which was described by one of his contemporaries as a novel plan. The different approaches adopted by the scholars with regard to the codification of legal subjects resulted in a variety of arrangements of the chapters in their hooks. subdivisions of sections. There was also much disagreement about the For instance the number of acts of devotion is according to Ibn gamza7 and a l - ~ u b a ~ ~ i ~ % n d

smaller branch growing from trunk of the tree itself.

discussions of the two topics of the times of prayer (owqiit 01-$ala) and the direction of prayer (qiblo); there is also discussion on the social status of the S h i ' i jurist (foqSh) and the nature of Islamic government in the part devoted to Friday prayer. 3. K . al-zokiit = alms, the best known fiscal obligation of Muslims.4.

K . 01-khums, the one fifth tax which according to S h i ' i law coversA discussion about the authority of S h i ' i jurists is

all kinds of revenue and not only the booty of war and treasure trove as Suuni law maintains. included. Some laws relating to non-Muslim residents of Muslim territory The chapter is followed by a discussion

five according to Shaykh al-r%'ifa3 and Ibn zuhra,%ix ~ a l l i r ten according to al-galabi

,'

,6

forty-five according to Yabyi b . Sa'id.

'

are to be found here, since one of the cases where khums is levied is land sold to a non-Muslim by a Muslim. and wastelands. 5. K . al-sowm = fasting. 6. K . 01-i'tikiif = seclusion, which is regarded a s a desirable act of devotion in Islamic law, and should be performed in the congregational mosque of the town. 7. K . al-bojj = pilgrimage to Mecca during the last month of the Islamic lunar calendar, with its special laws and conditions. of a n m , i.e. the property of the Isiamic state including all natural wealth

On the other hand, some authors, especially later ones, merged different chapters and reduced the number of general titles as mush as possihle. Thus there is considerable variation between legal texts in respect to their arrangement and the number of chapters. For instance, 01-Nihiiyo by Shaykh al-TZ'ifa has twenty-two chapters, his 01-Mobsiif seventy one, 'AllZma thirty-one, his Tabsirat 01-muto'ollim'in eighteen, 01-Lum'o 01-Dimoshqiyyo by al-Shahid al-Awwal fifty-two, his a/-Duriis al-Shar'iyyo forty-eight, Mofdt'ib a/-shord'i' by al-Faya twelve, and his 01-WiiF (which is a collection of traditions) ten.

Shorii'i' 01-Isliim by al-Mu'paqqiq fifty-two, Qowd'id 01-obkdm by al-

8. K . ol-'umro = a simpler kind of pilgrimage to Mecca which can beperformed at any time of the year. 9. K . 01-jihiid = 'holy war', offensive and defensive, and in the second case against either external or internal enemies. This chapter includes discussion of the different categories of land within Muslim territory, on the relation between the Islamic state and non-Muslim governments, on the status of non-Muslims in Muslim territory, and the like.1 0 . K.ol-omr b i 'I-mo'rzf

***What follows is a very brief description of the contents of S h i ' i law, according to the classification and arrangment of al-Mu'paqqiq's Shorz'i' 01-lsliim: A. ACTS OF DEVOTION ('ibiidiit): 1. K . 01-lahiiro = ritual purity. The chapter includes some laws relating to non-Muslims and the deceased. Niiri, 111, p . 498; AB, 111, p . 105 See Kalbisi, fol. 21. Shaykh, lqti$iid, p. 239. Ibn Zuhra, p . 549 SallZr, p. 28. galabi, KiiF, fol. 2b. Ibn Bamza, loc. cit.8

w 'I-nahy 'on ol-munkor = ordering what is o rules and regulations of these Islamic

good and forbidding what is evil; social obligations.

B.

CONTRACTS ( ' u q i d )

1. K . al-tijdro = transactions; discussion about valid and invalid waysof carrying out transactions, unlawful business, right of cancellation of business agreements, conditions connected with contracts and similar topics. It also includes discussion on ownership and the fiscal system as applied to the various categories of land in Muslim territory, the legal status of working for unjust rulers and their disposals of the properties of the Muslims' treasury, and, in the legal works of the last century up to now, a study of the authority of the S h i ' i jurist (wiliiyot ol-foq'ih).

Mubaqqiq, Shard'i', I , p . 19. Yabyi b . Sa'id, Nuzho, pp. 6 - 7 .

20

A INTRODUCTION TO N

SHT'T

LW A 2.3.

THE OUTLINES OF

SHT'T L W A

21

Legal discussion about subjects such as music and interest on !oans is to be found in the same chapter. 2.3.

K . a/-khul' w 'I-mubZro'o, two kinds of divorce by which the wife o

K a/-rohn = mortgage.

redeems herself from the marriage for a consideration.

K . a/-mufollos = bankruptcy, the responsibilities of the Islamic

K . a/-rib+, that is a husband's statement to his wife, saying she

state when somebody becomes bankrupt and his assets do not balance his liabilities. 4.

is like his mother (this was a saying occasionally used in Arab communities). This declaration requires a religious expiation (koffiro).4.

K . a/-bojr = interdiction, cases where the owner is legally forbidden

K . 0 - i' 1T:

= a husband's oath to abstain from marital intercourse

from disposing of his own property, a s is the case with minors and the insane. 5.

for a period of more than four months, in which case he must either give up his oath or divorce his wife.5.

K . 01-p'amZn = suretyship for claims, transference of the liability

K. ol-li'iin, husband's affirmation, through a cursing oath and

with regard to a claim. The suretyship for persons (01-kofZlo bi 'I-nofs) is also discussed in the same chapter. 6.

before a court of law, that the wife has been unfaithful, and a similar affirmation by his wife that the husband is lying. After such a counteraffirmation and cursing the marriage is irrevocably dissolved. 6.7.

K . 01-gulb = conciliation, the mutual agreement of two persons on a

certain matter, the details of which are not clear; for example, the mutual agreement between the creditor and the debtor on a specified sum where the amount of the debt is not precisely known.7.

K . olk'itq = the manumission of slaves.

K . 01-tadbTr w 'I-mukiitobo w 'I-istTlZd, these are three ways for o oTodbTr is a manumission which takes

slaves to acquire their freedom.

K . 01-sharika = partnership.K . ol-MudZraba = sleeping partnership, i.e. one party invests theK.ol-muziiro'o w 'I-musiiqZt = share cropping, i.e. the landlord o

effect from the time of the owner's death. MukZtaba is a contract between the owner and the slave by which the latter acquires his fredom against a future payment. The third concept, istniid, refers to cases where a female slave gives birth to a child for her owner, in which case she becomes free on her owner's death. 8.. K . 01-iqrZr = acknowledgement of debt, family relationship and the like.9.

8.9.

capital and the other provides the labour. entrusts his land to a cultivator (muziiro'a) or the owner of an orchard gives it to someone to look after the trees (rnusiiqct), in return for a share of the produce.10.

It is conclusive legal evidence for the creation of an obligation on

K . 01-wafl'a = deposit, the safe-keeping of someone else's property.

the part of the person who makes it.

11. K . 01-'Zrlya = lending an object gratuitously to someone to make use of i t . 12. K . 01-ijZro = h i r e and lease, the sale of usufruct or the hire of service. 13. K. 01-wikZlo = procuration, power of disposal on another. 14. 15.

K . 01-ju'iilo, the undertaking by a person to pay a certain sum inFor instance, someone offers a sum as a reward for the

return for the performance of some specific t a s k , no matter who actually performs it. return of some property of his which has been lost.

1 0 . K . a/-oymZn = oaths, undertakings stated in the name of God.11. K . a/-nodhr = vow, an undertaking towards God to do or not to do something, unconditionally or provided a certain wish comes t r u e .

K. 01-wuqiif wa'l-godoqiit = endowments and charity. K . 01-suknz w 'I-tabbTs = temporary donation of usufruct. o

16. K . 01-hibZt = donation of objects. 17. K. 01-sabq w 'I-rimiiyo = horse and camel racing and marksmanship o contests; the only two cases where betting is regarded as legal, for the actual participants only. 18. K. 01-wo$iiyZ = legacies. 19. K. al-nikZb marriage.

D.2.

RULES (obk?im)

o 1. K . 01-joyd w 'I-dhobZbo = hunting and slaughtering.

K . 01-ol 'imo w 'I-oshriba = food and drinks. o K . a/-ghazb = usurpation.

3.

4.

K . ol-shuf'o = pre-emption, the co-owner's right to priority to buy

the other share of the property, so that he can dissolve the sale of that share and take it into his own possession if it is sold to an outsider without the co-owner's agreement. 5.

C.

UNILATERAL OBLIGATIONS (Tqz'Zt)

1. K . a/-jolZq = divorce

K . ibyZ' 01-mowZt = reclamation of wastelands.

This chapter

22

A INTRODUCTION TO ~ ~ f LAW N ' f

includes a survey of land law, and is normally followed by a s t u d y of the common property of t h e community (mushtorokiit), such as water and pasture.6.

K . oi-iuqoto = trove p r o p e r t y .Chapter Four

7.

K . olkfort7'id = inheritance. 8. K. 01-qadZ' = arbitration, legal procedure.9.

K . 01-shohCd6t

:

witnesses.

o 10. K . ol-budijd w 'I-toCrTrFt = penal law. 11. K . o l - q i ~ t 7= retaliation, the right of the offended person or his ~ hairs against the offender. 1 2 . K. oi-diyZt z blood-money and other financial compensations.

/12 ji I

The present legal system of S h i ' i fiqh has developed through various phases, a n d has been reformed and elaborated by many e m ~ n e n tscholars, among whom are Shaykh al-Ti'lfa Mubarnmad b . uasan al-Tusi, d l - ~ u b a q q i qJ a ' f a r b

. Basan

ai-I.I~lli, ai-'~11ima uasan b. ~ i i s u f b

.

ai-Mutahhar al-JJlili, al-Shahid al-Awwal Mubammad b . Makki al-'iimlli and G i b ~ b al-Madirlk Mubammad b . ' Ali a l - ' ~ I E( d . 100911600). In the legal sources, the hlstory of S h i ' i law is usually divided into two periods,' that of the ancient or early scholars (qudornC' or rnutoqodd~mijn)and that of the moderns or later scholars (muto'okhkhirCn). In works of the 6 t h 7 1 h i 12th- 13th centuries, t h e contemporaries of t h e twelve Imams were considered as the 'ancients' and those who came after this e r a (i.e from 2601874 onwards) a s the 'moderns'.

1

1 expression 'ancients' i s applied to Shaykh al-Ti'ifa(temporary with themselves.

A t times, theSometimes, how

and his predecessors3

and the expression 'moderns' given to his successors.'

e v e r , the expression 'moderns' 1s used by writers to mean scholars conIn later sourccs the term 'ancients' means In t h e sources of the 13thll9th 'I-muto'okhkhirTn (the moderns 01 thosc who llved before al-Mubaqqiq or a1-'Allima, and the term 'moderns'

I century, t h c expression muto'akhkhiru

refers to those who lived after them.

/

the moderns)

IS

used to mean, in earller works, thosc who came after

This division is other than that of traditionists in which the S h i ' i traditionists have been divided into ten sections (Jobaqo). The bases and criteria for these two divisions are quite different a s well. (See A B , 111, p . 137, quoting Basan al-$adr in his Bughyot ol-wu'ot 7 JoboqZt ' j mosho'ikh 01-ij?ilot). 'Abd 81-Jalil al-Qazwini , p . 209; Mubaqqiq, Mu'tobor, p . 7. Shaykh al-'rz'ifa himself i s considered to be one of 'the ancients' in Shahid 11, Rawda, 11, p . 73.

'

See for instance Mubaqqiq. Nukol, p.438; Yabyz b . Sa'id, Nuzho, p . 6. 1bn Idris, p . 265; Uurr al-'Amili, Amai, 11, p . 5.

24

A INTRODUCTION TO N

S H T ' ~ LAW

A THE PERIODS OF SHT'T L W

25

al-Shahid a l - ~ w w a l ' and in later works those who came a f t e r Sahib al-Madirik. This division does not adequately reflect t h e development of the law, which can more exactly be defined by a division into eight periods. What

e s also explained when faced by questions from their followers that the rect replies to their questions couid be graspcd and derived froin general mic legal principles.' On some occasions, the lmams themselves foled what they advised as the correct method of reasoning and t h u s ructed their followers on the proper procedure for inference of legal The period of the presence of t h e I m a m s i s quite distinct from the ing periods of S h i ' i history in respect to the variety of koiiim ogical doctrines held by S h i ' i scholars. Many of the Imams' companwere eminent kaliim theologians3 who held significant opinions on ogical subjects, some of which have been quoted in the general koliim s , among them: IIishim b . al-Uakam, HishZm b . Salim, Zurara b .

follows is a brief description of these periods, together with a mention of t h e most eminent scholars4 of each pcriod and their main legal works. 1. THE PERIOD OF THE PRESENCE OF THE i h l l i j ~ s It is generally believed that S h i ' i law was undeveloped in this period which began with the Prophet and ended in 2601874. This is based on the assumption that since the Imams were present and accessible, there was no great urge to develop t h e practice of independent judgment and that law was limited to the transmission of traditions. This idea is not c0rrCCt. In order to have a better grasp of t h e situation, the circuinstances of Shi'ism at t h e time have to be examined. (1) It can be clearly seen from religious traditions that S h i ' i Imams had persistently urged their followers to reason and use their minds. In the case of discussions on Koliirn theology they praised and encouraged S h i ' i In the case of legal problems, the 1mZms theologians of their times. stated explicitly that their own duties lay in explaining general ruies and principles; whereas inferences in details and minor precepts for actual cases were left to the learned followers of the ImZms.' Khalkhali, 111, p . 174. Mudarris, 111, p . 439. t h Rae? al-Din al-Qazwini's classification of t h e S h i ' i scholars up to the mid-10thllGth century into seven genreations. See his TiirTkh-i rnoshFhTr-7 imiimiyyo. By these scholars are meant those whose legal opinions have been considered and quoted in the sources of fiqh . In these sources, the views of different S h i ' i jurists and even sometimes of Sunni ones a r e usually quoted before examining each case. Obviously, only t h e views of those scholars who influenced the development of law, were quoted and taken note of. The names of these scholars and their famous reference works have been chronologically listed in t h e preface of Moqiibis oi-onwiir by a l - ~ a v i m i ( p p . 4-19). In t h e S h i ' i sources of law, there are special abbreviations for t h e names of t h e scholars and the legal sources, a s well a s some particular terms; many of these a r e explained in al-KhwinsZri's Rowp'zt, 11, p p . 114-15, and in t h e preface of al-KZgimils Moqiibis, p p . 19-22.3

, Mu'min al-Tiq, Yiinus b . 'Abd al-Rabman (all of t h e 2ndl8thr y ) , and al-Bazanti and Fa61 b . Shadhin (of the 3rdl9th c e n t u r y ) ? other kaiiim SChOols of the time had followers among S h i ' i thologians e early centuries of Islam. ifferences of opnions on kaiiim theological subjects resulted in the gence of a variety of tendencies and groups among the companions of Many mims, causing intensive debates and arguments among then. e most prominent companions of the Imams had their own separate

The Imams someee for instance Kulayni, 111, p . 33; V , p . 357; Shaykh, TohdhTb, 3; VII, p . 297; idem, lstib$iir, I , pp.77-8; VII, p.297; 111, p . r r al-'Amili, I , p.327; Jiimi' obtd7th a/-ShT'o, 1, p p . 116-18. for instance Kulayni , 111, p p . 83-8; 542, 546, 547-8. ee Iqbal, p p . 75-84. for instance $aduq, TowbTd, pp. 97-104; Mufid, FugGl, pp. 119B u r r al-'Amili, 11, p p .

compare i ~

'

, Awc'il a/-mOq6iiit, p . 116, and the whole text for the opinions ofKashshi, p p . 268, 275, 284-5, 490, 540-4; ~ u h p i ' i ,V I , al-Din al- Qazwini, QiyFfa, p p . 180-1; Majlisi 11, 111, , 300, 303, 305; Bihbahani, ToClTqFt,p . 8; ~ b i 'i ~ l i p p . 45, , a ~ i m i Kashf 01-qin~?', p p . 198-200; ~ a m a q i n, TanqTb, the introi n , p p . 208-9. See also $afZ'i, p p . 36-68. Asad Allah al-Kivimi, a s $%bib al-Maqabis ( d . 123411818-19) collected the different views mpanions of Imams from early sources in a book entitled 01(see his Kashf 01-qinii', p . 71). tis;

6 :

See Kashshi, p p . 268, 278, 484-6, 489-90, 538, 542; ~ u l a y n i ,I , p p . 169-74; MuEd, TojbTb a/-i'tiqiid, p p . 171-2; ~ u h p a ' i , VI, p p . 223-30, 293-307. "AiaynF ilqii' 01-uzZl iloykum wo 'oloykum a/-1afrT" (we must give Bazanti, p . 477; you the principles and you have to derive branches): Faye, al-uoqq 01-mubTn, p . 7; B u r r alb'lijmili, XVIII, p . 41.

'

'

MuEd, Sorawiyyo, p . 2 2 1 ; idem, A wii'ii 01-moqiiliit, p . 77; ibis 0 l ' ~ m o lbi-okhbiir 01-iibiid, fol. 142b; Najishi, p . 289; , 'Udda, p p . 54-5; idem, Fihrist, p . 190; Ibn Shahrashfib, a P . 126; Q u h p a ' i , V, p . 177; Mubarnmad al-Ardabili, 11, p . 234; 11, 111, p . 304; Futiini, p . 4 . $aduq, a ~ i m i ,Koshf 100; K a s,hp p . , 11-84. 307: K TawbTd, p . a/-qinF' s h i p p . 279-80; Majlisi 11, 111,

26

A N INTRODUCTION TO SHT'T L W A

THE PERIODS OF S H T ' ~ A LW

27

groups of followers1 who sometimes branded each other a s 'infidel' (kiifir)' and many books were produced on these disputations and confrontations. It i s interesting to note t h a t , sometimes, members of one tendency or group would disagree even with their 'leader' on most aspects of ideological principles." On the other h a n d , many S h i ' i s who gathered around the Imams restricted themselves to the transmission of traditions and refrained from theological debates. They did not look favourably upon The theologians who werc appreciated and favoured t h e S h i ' i theologians. by the Imams, strongly resented the reproaches directed against them by t h e traditionists, and the Imams consoled the accused6 by saying that they should tolerate and act moderately towards their adversaries since t h e latters' capacity for understanding subtle points and minute nuances wasextremely limited.

itionists of their town were hostile to them'. he S h i ' i books on rijiii (biographies of the narrators of Tradition), cially that of al-Kashshi, are full of reports on different theological encies and opinions found amongst S h i ' i s of the f i r s t centuries of,

The works display the impact of intensive arguments and contro-

ies, a s well a s t h e impact of the support given by the Imams to the logians and their concerns f o r t h e prosperity and productivity of

'i thought. In his reply to the followers of Yiinus b . 'Abd al-Rabmin,were considered to be 'infidels' by t h e r e s t of the followers of ihe ms, Imam 'Ali al-Ria2 would tell them: 'I see you moving in the path

ost S h i ' i jurists during t h e time of the Imams were among these o ogians, a s will be mentioned presently. Certain tendencies could be found in the S h i ' i community of the

Some of the traditionists of Qum, too, squabbled with in condemnation of the latter and a t i r i and wrote books in this vein.lo

theologians,

' fabricated traditions

uted them to the authority of the Imams, theologians and rcad their books.

#

On the other h a n d , t h e Imams recommended their followers to refer to They even encouraged the people of Qum to honour and respect S h i ' i theologians 'in spite of the fact that the

a

period of the presence of the Imams whlch were opposed lo the tradlllonally predominant doctnneconcerning the nature of the Imams. Some of companions of t h e Imams did not accept that the Imams possessed

ne qualities such a s infallibility and impeccability ('igma) but believed they were pious learned men ('ulamii' abriir), who had merely a arly authority. This view was supported by some of the S h i ' i

Durust b.Abi MangGr, p . 161. See Kulayni, VII, p . 285; Kashshi, p p . 279-80. 498-9; 'iimili, VI, p . 385. B u r r al-

ogians of later periods, amongst them Abu J a ' f a r Mubarnmad b . Qiba 5 5 , a S h i ' i scholar and theologian of the 4thilOth c e n t u r y , who was ding figure in the S h i ' i community of his time,' and whose views espected and r e f e r r e d to by later S h i ' i scholars. owledge of the Q u r ' a n and Tradition. He supported a that the Imams were merely pious scholars, who had a comprehenHe also refuted the idea that

For instance Hisham b . al-Hakam's treatise in refutation to Mu'min al-Taq ( N a j i s h i , p . 338); Rislila f l m a ' n i i H i s h h wa YEnus by 'Ali b . IbrZhim b . Hishim al-Qummi ( i b i d . , p . 197); Risiilo fi 'I-radd 'alii 'A17 b . IbriihTm b. Hiishim fi mo'nii Hishiim wa YEnus by Sa'd b . 'Abd Allah al-Ash'ari ( i b i d . , p . 134). See for example Shaykh, Fihrist, p . 132, the biography of Abu J a ' f a r al-Sakkik. See Kashshi, e . g . p p . 279, 487-8, 496, 498-9. Sce also $adGq, TowbTd, p p . 458-60; Ibn TawGs, Kashf 01-mabajja, p p . 18-19; B u r r al-'Amili, XI, p p . 457-9. "ee'

ams had knowledge of the unperceivable ( 'ilm 01-ghayb) . s.'

Yet, in f these opinions, his doctrinal stand was appreciated by later S h i ' i At least some of the traditiouists of Qum, who were considered

a s h s h i , p . 489. e $adiiq, Kh~$iil,p . 354; m, 111, p p . 219-20. 'Allama, Khuliiga, p . 143. i d . , p . 200. Some other opinions of this scholar, which are differm S h i ' i traditional and popular views, are quoted in the works of if al-Murtadi (see a s an example his 01-ShiiF, p . 100). y k h , Fihrist, p . 132; Ibn Shahrashub, Mo'iilim, p . 85; 'Allama, ~ u r al-'Zmili, X I , p p . 429-30; r Babr

Kashshi , p p . 498-9. I b i d . , p . 488.

Ibid., p . 489, also p p . 483, 506; Mubammad al-Ardabili, I , p . 459, 11, p . 357; Abii 'Ali, p . 28. Kashshi , p . 497. For examples of those traditions see p p . 491-6, 540-4; R a r q i , Rljiil, p . 35; Bazanti, p . 478. For example K . Mathiilib Hishiim wo YEnus by Sa'd b . 'Abd Allah al-Ash'ari ( N a j i s h i , p . 134) and K . a/-Ta'n 'a15 YCinus by Ya'qub b . Yazid b . UammXd al-KZtib al-Anbiri al-Sulami al-Qummi (ibid. , p . 350). Kashshi, p p . 483-5, 506; NajZshi, p p . 346-8.l o

'

, p . 143. All stating that Ibn Qiba was gabTI, 01-madhhab o r basan

28

A A INTRODUCTION TO S ~ f ' fL W N

THE PERIODS OF SHf'T L W A g h t , those cases of dispute ought to have been taken to the Bms for their judgment, a practice usually followed by most faithful

as the backbone of the S h i ' i school, also held similar opinions with regard to the Imims. extent. Some of the companions of the Imims even believed that the Imams, just like the jurists of those times, practised independent judgment ( r a ' y I 3 or analogical reasoning ( q i y i i s ) . the traditionists of Qum. It seems that the Nawbakhtis, too, thought likewise to some

) As mentioned already, the inference of legal precepts in S h i ' i law is ndamentally based on logical analysis and reasoning within the framework

'

This position was also accepted by some of

~ u r ' i i n i ctexts and Tradition.

Rational argument is accepted on the

Abii Mubarnmad Layth b . al-Bakhtari al-Muradi ,

8

basis of Aristotelian deduct~on,whlch brlngs certainty according to the nciples of that logical system. The kind of analogical reasoning which entitled qiyiis in Islamic law was rejected by the Shi'a from the time it me into Islamic law, in the 2ndl8th century, because it leads only to a Some cases of qlyiis obable cause for a precept, not to the certain one. cepted in S h i ' i law. In the first centuries, the traditionists who were opposed to any kind tional argument held that this mode of arriving at categorical judg-

known as Abii Basis, one of the most competent scholars among the companions of Imim Ja'far al-gidiq6 who, according to many narratives was praised by the Imams7 and was one of the four elite of the S h i ' i religion, a did not accept the legal opinions of the seventh Imam, MZsi al-Kazim, and thought that the latter had not yet acquired an adequate knowledge of law. A number of other companions of the Imims are said to have heldlo

which the real cause of a precept is found a r e , a s mentioned before,

similar views.

On this basis, some of the companions of the I~narnsopenly disagreed with them in scientific questions," and sometimes they even argued with them over points of disagreementl2 or asked them to present the reason for the positions they held in legal question^.'^ Such controversies between the companions of the Imims sometimes culminated in serious quarrels breaking up friendships permanently, " while, according to customary Mufid, To$bTb 0 1 - ! ' l i q i i d , pp. 218-19. See their views in similar cases in al-Mufld's A w o ' i l a/-moqiiliit , for example pp. 78, 79, 80, 84. Babr al-' UlZm, 111, p . 220. Also gaffar, B o ~ i i ' i r ,p. 301; Mufld, S o r o w i y y o , p . 2 2 4 ; idem, l k h t i $ i i $ , p . 2 7 4 ; Jiimi' o b c f l t h 01-ShT'o, I , p . 273.

s amounted to qiyiis and was therefore unlawful.ection with the Sunni concept of q i y i i s . were considered a klnd of q l y i i s . or terminological similarities.

Some later scholars

d it permissible q i y i i s , ' while in fact this mode of analysis bears no It seems that in the religious ality of the Shi'a of the first centuries, all kinds of rational argument Thls was perhaps caused by some out Then, traditionists believed that the

ctions found in S h i ' i Tradition which forbade the practice of q i y z s also applicable to any other mode of rational analysis. hese traditions also forbid practising independent judgment, which is d r a ' y in legal terminology. In the legal usage of the early periods, erm i j t i h i i d was used7 in the sense of personal judgments including r o ' y . 8; AbZ Mangiir al-Tabrisi, 11, p . 284.

'

KZv,imi, p . 83. ~ufid, To$bTI;I 0 1 - i ' t i q i i d , p. 219. Ibn Bazm, I b k t m , VII, p . 177; idem, Mulokhkhos i b t i i l a o i r o ' y wo '1Karaki , TorTq i s t i n b i i t 01-obkiim, p. 17. Because of the same interation, later Akhbiris accused Ugiilis of following the practice of qiyiis heir legal judgments. See for instance Busayn al-Karaki, chapter 8. also Bihbahini , TobqTqA/-Masii'il a / - M u h a n n i i ' i y y o , fol. 92a; Shahid 11, Rowp'o, 111, p. 65. fil ' I - q i y i i s , fol. 85a.

Kashshi, p. 238; T u s t a r i , Qiimiis 01-rijiil, VII, p . 451. Kashshi , pp. 136-7, 170; QuhpZ'i , V , p . 83; Mubammad alArdabili, 11, p . 34. a Kashshi , pp. 238-9. The others are Zuriira b . A'yan, Muhammad b . Muslim and Burayd b . Mu'awiya al-'Ijli.

"l2l 3

Ibid., p. 173; Q u h p i ' i , V , pp. 84-5. Kashshi, pp. 147, 148, 158. Ki~imi, pp. 71-2. Ibid., p . 72.

AI-Mosii'il 01-Muhonnii'iyyo, fol. 92a; Miqdid, TonqTb, fol. 3a; ahani, TobqTq f i ' I - q i y i i s , fol. 85b.

See Kashshi, p . 189; Mubaqqiq, M o ' i i r i j , p . 127. See as examples Abu 'I-Ijusayn al-Bagri, pp. 689, 722, 761-6; Qadi i n , l k h t i l i i f u $ i l 01-Modhiihib, pp. 203-28; Mufid, F u $ C l , p . 68; , D h o r T ' a , pp. 672-3. ee further the article i d j t i h c d in E l , 111, p. 1026.

See for instance Kulayni , 111, p. 30; gadiiq, FoqTh, I , pp. 56-7; idem, ' I l o l , I , pp. 264-5; Shaykh, TahdhTb, I , pp. 61-2; idem, I s t i b g i i r , I , pp. 62-3; Burr al-'Amili, 1, p. 291, 11, p. 980.l4

See Kulayni, I , pp. 409-11;

NZri, I , p . 555.

30

A N INTRODUCTION TO SHf'f L W A some chapters of f i q h such a s p r a y e r , alms t a x , marriage and inheritance,' u r i r a b . Aryan al-Kiifi, Jam3 b . D a r r i j , the most learned companion of sixth Imim, Ja'far al-Sidiq, 'Abd Allah b . Bukayr, a great S h i ' i It is almost ist of the 2ndl8th c e n t u r y b and a number of other famous companions, o were accused of and blamed for their practice of q i y i i s . d not of the Sunni concept of q i y i i s . tain that the above were supporters of the analytical mode of reasoning Their judgments, many of which confirm this point. ve been collected by Asad Allah al-Kizimi

This explains why S h i ' i s refrained from t h e use of the term i j t i h i i d until the 6thIl2th century.I

It also explains the objections raised in S h i ' i and the refutation of its legitimacy in 'Abd Allih b .

theological works toward i j t i h o d ,

works written by S h i ' i theologians like the Nawbakhtis, All these were against i j t i h i i d in the above sense.

'Abd al-Rabman al-Zubayri' and Abu '1-QZsim 'Ali b . Akjmad al-Kiifi. Otherwise i j t i h i i d , a s a rational mode of reasoning, was quite an acceptable phenomenon among many S h i ' i s from the 2ndl8th century onwards, and from late 4thll0th century it emerged a s the only method by which legal subjects were approached. these analytical and rational methods of S h i ' i scholars of the early centuries of Islam appeared to amount to r a ' y and q i y i i s in the eyes of strict traditionists who objected to the rational analytical modes of reasoning in law.

It i s evident from what has been said in the five sections above that in e period of the presence of the Imams, two legal tendencies existed in

e S h i ' i cotnmunity.

One of them adhered to an analytical, rational ap-

oach toward legal problems within the framework of t h e general inciples of the Qur'Zn and Tradition.

'and

( 5 ) In some traditions, it is reported that some companions of the Imams practised q i y i i s on occasions when instructions over a particular problem were not explicitly and clearly givenin the Q u r ' i n and Tradition, that some of them were practising the method of r o ' y . Some of the most

8

'

The other was a traditionalist

approach whlch relled on transmitting traditions wlthout any f u r t h e r infer ntial derivation of law. Many S h i ' i jurists of this period are mentioned in thc S h i ' i works onm 01-riji;19 and other sources.1 The names of some of thein are also

knowledgeable companions of the Imams whose opinions and judgments are cited in legal sources, have been accused of following the practice of qiyZis. Among them are Fa(i1 b . Shadhiln al-Naysibiiri, author ofo/-Tdiih ( d . 2601873-4) whose opinions on some legal subjects such a s q n i ' , p p . 170, 175-6;

heir works in Ibn al-Nadim's K . a / - F i h r i s t . 161-2, 168; $adiiq, FoqTh, IV, p . 197; i b i d . , Mufid, F u g Z l , p p . 123-4; Murtapa, l n t i $ 5 r , 286; Ibn Shahrishiib, M a t h t l i b , fois. 233b-234a; Shahid I , D u r E s , 263; idem, QawC'id, p . 316; Najafi, XVI, p . 90.

divorce and inheritance, and on some questions of u $ Z / 01-fiqh are quoted in the s o u r c e s , 1 0 Yiinus b . 'Abd al-Rakjman, whose opinions are cited in See Mukjammad BZqir al-gads, D u r G s , I , p p . 55-64. See for instance Mufid, A w i i ' i i 01-moqiiiiit, p . 127; idem, F u g i i l , p p . 66-9. Also Nu'miini , TofsTr, pp. 95-6; Murtaai, D h o r T ' a , p p . 792-5; idem, / n t i $ i i r , p . 98. q q b i l , p p . 94, 117, 118, 120. N a j i s h i , p . 163. I b i d . , p . 203. This i s according to the predominant Ugiili school of S h i ' i law. The Akhbiris rejected the validity of all kinds of rational argument in law, a s noted before. Books such a s 01-Rodd ' a l i i man r o d d Cthiir a/-RosCl wo i'tomad 'a15 n o t i i ' i j o l - ' u q i l by Hilil b . Ibrihim b . Abi '1-Fat12 al-Madani ( N a j i s h i , p . 344) are written with the same understanding.7'

See Kulayni, VII, p p . 83-4, 115-16, 121-5; $adiiq, M u q n i ' , p . 175; r t a p i , I n t i s Z i r , p p . 77-8; 'AIlima, M u k h t a l a f , 1, p . 136; Shahicl I , r i i s , p . 57; idem, Q o w i i ' i d , p.325; 'abd Allih al-Tiini, 01. 97. Kashshi, p . 156. See for some of his legal views Kulayni, VII, 97, 100-1. Kashshi, p . 375. Some of his legal opinions are quoted in the urces, e . g . Kulayni, VI, p . 141, VII, p . 256; Shaykh, TohdhTb, X , 137; idem, / s t i b $ C r , IV, p . 253. Kashshi, p . 345. gadiiq, FoqTh, IV, p . 197; Murtapa, l b f i i i a/-'omoi b i - o k h b i i r oli i d , Sol. 142b; Futiini, p . 4 4 ; Bahr al-'Ulum, 111, p p . 215-19; i a i m i , p . 83. See also Shaykh, ' U d d o , p . 51.', See his Kashf ~ l - ~ i n o p p . 82-3, 198, 244 a s some examples.

'

See K a s h s h i , p . 156. See also K h u m a ~ n i ,Risiila f i ' I - i j t i h i i d wo ' 1 - l o q r d , p p . 125-8. For instance Kashshi, p p . 238, 375, 556, also p . 484; Shaykh,

Durust b . Abi Mangiir, p . 165; B a r q i , Muhiisin, I , p p . 212-15; IJimyari, p . 157; Kashshi, p . 239; Mufid, l k h t i $ i i $ , p . 275; IJurr al'Amili, XVIII, p p . 33, 38; Niiri, 111, p p . 176-7; Jiimi- ohOd7th a/-ShT'a, I , p p . 274-6. B a r q i , MahZisin, I , pp. 212-15; K a s h s h i , p p . 156-7. See Kulayni, VI, p p . 93-6, VII, p p . 88-90, 95-6, 98-9, 105-8, 116-18,

r i s i , p . 52; Ibn Diwiid, p . 272.

A s an example Mufid, A / - R a d d '015 aghiib a o l ' a d o d , p . i28; Shaykh,

'

d h 7 b , VIII, p . 97.

See also Elasan al-$adr, pp. 298-302.

See Ibn al-Nadim, p p . 275-9.

32

A INTRODUCTION TO S H ~ ' ?L W N A

A THE PERIODS OF SHT'T L W hose mentioned in the traditions. The legal works of this group of

33

the opinions of the jurists of this period a r e quoted i n the legal works of later periods. 2. THE FIRST CENTURY OF THE OCCULTATION

aditionists were collections of traditions compiled according to their subct matter, and sometimes with the omission of the chain of transmitters niid). Traditionists such a s : Mul2ammad b . Ya'qiib al-Kulayni Mubarnmad b . al-Uasan b . Ahmad b . al-WaIid ( d . 3431954-5) Muhammad b . 'Ali b . Babawayh al-Qummi , al-Sadiiq T h e l e g a l choices4 of al-Kulayni and al-SadGq

In the period of the 'Minor Occultation' (2601874-3291941) and until the latter part of the 4thIlOth century, three different legal schools existed in the S h i ' i community.

) )

I.

The School of the traditionists (Ah/ a/-baflth)

1 into this group. 1

This was a continuation of the conservative legal tendency of the period of the Presence, and likewise devoted its efforts to collecting, recording and preserving the traditions from the Imams. The adherents of this school, like their predecessors in the time of the Imams, were not sympathetic to rational arguments in religious matters, and condemned even those efforts which applied rational argument toreligious questions in order to strengthen the S h i ' i point of view. This school resembled in its outhis look the Sunni school of traditionists, where Armad b . uanbal " n ad followers~ejected kaliim even when used in defence of Islam. In their legal approach, there were two groups of traditionists who differed among themselves: ( a ) Those who only accepted traditions which were related by transmitters whose reliability had been thoroughly examined. Their knowledge of the traditions dealing with legal questions was extensive. the traditions of the Imams. They recognized and implemented those principles of u$G/ a/-fiqh which were contained in

ve been quoted in the legal sources. ) The other group followed traditions without compromise and completely nored the 'principles of u$G/ a/-fiqh and the rules by which a tradition uld be examined. They completely ignored the procedures of debate, asoning and modes of discourse .'6 The extreme tendencies of these h i ' i traditionists were comparable to the tendency of the Vashwiyya in unnism which was the most extreme and inflexible Sunni traditionist However, in the works of S h i ' i theologians of the 4th-6thI hool. 0th-12th centuries, lerms such a s bashwiyya8 and muqo/lidag together ~ t h the terms a$biib o l - b ~ d T t h ' and akhbiirisyol' were applied to all p . 2 ; Amin al-Astarabzdi, op. c i t . , fol. 101b. K. 01-MuqniC s y $adGq is an example of this sort of 'legal works'. e especially p . 2 of this book. "haykh, Fihrist, pp. 135, 156, 157; T u s t a r i , Sahw a/-Nab?, p . 9. e also A n g i r i , Rosii'il, p . 87. Both al-Kulayni and al-SadUq in the introduction to their two main o r k s , viz. K . a/-KiifTand Man 1 yobQ'uruh a/-faq?h respectively, acknow; dged the authenticity of what they transmilted in those books. Thus in e cases of conflict between traditions, the one they accepted and narted in their works, demonstrates their viewpoints in each specific case. Muraqqiq, Mu'tobar, p . 7; SZpib al-Madirik, Hidiiyot a/-JalibTn , 1. 46; K a ~ i m i ,Maqiibis, p . 23. Shaykh, 'Udda, p . 248; Kazimi, Kashf 01-qinii', p . 202. See Mufid, lf$iib, p . 77; idem, A wii'il a/-maqii/zt, p . 65; Murtaoi 1-Razi, p . 46. Mufid, Ukbariyya, fol. 59a; idem, A wii'ii a/-rnaqiiliit, p . 86; idcm, wiib ah/ 01-Uii'ir, p.114; 'abd al-Jalil al-Qazwini, p p . 3 , 235, 272, 285, 9, see also Mubaqqiq, Mu'tabar, p . 6; FayQ, a/-U$ii/ 01-a$?la, p.61. MuEd, Jawiib ah/ a/-Uii'ir, p . 112; Shaykh, 'Udda, p . 54. and the like ( o ~ b i i b a/-okhbiir, ah1 a/-ba&th, ah1 a/-akhbiir etc. 1. See f i d , a/-Rodd 'a15 albiib a/-'odad,p. 124; idem, A wii'il ol-maqiiliit, p p . -1, 87, 88, 89, 92, 101, 108, 118; idem, Ta$bTb 01-i'tiqiid, p p . 186, 2; idem, Sarowiyya, p p . 222, 223; Murtaaa, Tobbiiniyyiit, fol. 2; idem, -Mow$i/iyya 01-thiiiitho, fol. 40a; idem, Tariibuiusiyyiit, fol. 1 1 0 ; idcm, Radd 'a15 o$biib aai'adad, fol. 130b; Shaykh, 'Udda, p . 248; idem, aybo, p . 3 ; Ibn Idris, p p . 5, 249. See also Shaykh, MabsiiJ, I , p . 2. Abd al-Jalil al-Qazwini, P O . , 3, 236, 2 7 2 , 282, 285, 458, 529, 568-9;

'

Like Sunni traditionists,

' however,

they

'

were chary of writing about legal subjects with words other than exactly See for instance the introduction to al-Mubaqqiq's a/-Mu'tabar, p . 7 , in which he says that he will quote the views of five jurists of that period. Also 6ZQib al-MadZrik's Hidiiyat a/-fiilibin, 01. 4b. Also the Preface to al-Kazimi's Maqiibis a/-anwzr, p . 23, in which six such scholars are mentioned. See also Shaykh, TahdhTb, VIII, p . 97. SadUq, ICtiqiidiit, p . 74. 70; Shaykh, Ghayba, p . 3. See also Mufid, Ta$bTb a/-i'tiqcd, p p . 169-

'

'

Ihn al-Jawzi, Moniiqib Abmad, p . 205. Ibn QudZma, T o b r h a/-naror fikutub ah/ a/-kaliim, p . 1 7 .

Later traditionists followed their predecessors in this case. Al-J.3urr alk'hnili, the renowned Akhbzri scholar of the late I l t h . 17th c e n t u r y , wrote a treatise against studying 'ilm a/-kaliim CAB, XXIV, p . 431). Shaykh, 'Udda, p . 248; Kizimi, Kashf a/-qinz', p p . 207-14; 'Abd Allah al-Tiini , p . 97; Amin al-AstarZbZdi , Jawiib rnasz'il a/-Shoykh Uusoyn, fol. 1Olb. See 'Abd al-Majid, p p . 288-9.

34

A N INTRODUCTION TO S H T ' ~ A LW

THE PERIODS OF

S H T ' ~L W A

35

the adherents of the traditionist tendency, even the former group. In the sources of ' i l m a / - r i j i i l the names of some jurists of this branch of the traditionists have been recorded, such as Abu '1-IJusayn al-Nashi', 'Ali b . 'Abd Allah b . WugayI ( d . 3661976-7) who is said to have discussed law in the same way as oh1 al-&7hir.

escribed and criticized in the works of al-Mufid and al-MurtapZ. 11. 'Qadimayn'

'

While the traditionist school was predominant in S h i ' i academic circles the second half of the 3rdl9th and a greater part of the 4thllOth turies, two important figures emerged among S h i ' i scholars, each of o had his own particular approach to law. Both practised rational m soning in legal thought. Hence, their methods can be considered as a tinuntion of the exercise of analytical and rational thought in law which isted in the period of the presence of the Imams. They are rcgarded2 constituting the first school of S h i ' i deductivc law, based not merely collections of traditions but on speculative analysis and rational Although these two personalities represented two differcnt legal percepn s and approaches, in many cases, they arrived at the same conclusiolls d issued similar opinions on legal problems. e Two Ancient (scholars).1)

'

Flowever, due to the school's

refusal and failure to apply reason and rationality and also due to thc absence of any ideas and original thought of their own, the decisions of its adherents2 did not gain any legal validity and were totally ignored in the sources. 9 traditions. The traditionist school which, in the period of the Presence, was one of the two prevailing tendencies of S h i ' i scholarly circles, gradually gained control over the whole S h i ' i intellectual community, and totally suppressed the rational theological and legal tendencies which were based on reasoning. The school of Qum, which in those days was the most prominent religious centre of the S h i ' i s , was completely dominated by this current and the Qummi scholars were all traditionists4 objecting to any kind of reasoning and analytical thought in the S h i e i community. late 4thllOth century were adherents of this school of thought.' As will be explained later, in the last decades of the 4thllOth and early 5 t h l l l t h centuries, the school was swept away by the teaching of al-Shaykh al-Mufid and his disciple al-Sharif al-Rlurtada. Although a small number of The overwhelming majority of S h i ' i jurists during this period and up to the s noted, their judgments were nothing but references to

Their legal judgments a r c ,

erefore, quoted jointly in the sources as the opinion 01 the Qadimayn, They are: Ibn Abi 'Aqil, Abii Mubarnmad wasan b . 'Ali b . Ahi 'AqZ al'UminT al-Hadhdhi', of the first half of the 4thllOth century.' He is the author of a legal work entitled 01-Mulomossik bi-bob1 the 4th and 5thllOth and 11th centuries.)

Ti1

01-Rosijl, which was onc of the most renowned legal sources during

Ibn al-Junayd, Ahii 'Ali Muhammad b . Abmad b . al-Junayd al-KStib al-Iskafi , of the middle of the 4thllOth century.-

its adherents survived, here and there, in later periods6 none of them gained prominence or influenced S h i ' i thought. The methodology and beliefs of the adherents of this school have been

IIe is

'AllZma, NihCyat 01-wuscl, fol. 200b. See also Shahrastani, pp. 169, 178; Sharif al-JurjZni , p. 629; Fakhr al-Razi , MobsGI (quoted in K i ~ i m , i p. 203). Shaykh, F i h r i s t , p . 89. It should be noted here that there were diffcrences of opinions among the adherents of this tranch of traditionists too, as the traditions of the Imams were sometimes contradictory, and each of those jurists was deciding legal problems according to those traditions he had received. Murtaai, 01-Rodd ' o l a asbFib 01-'odad, fol. 130b; idem, T a b b i i n i y y z t , fol. 2 ; idem, ol-Mow$i/iyya 01-thiilitha, fol. 40a. "urta&i, lbt??l 01-'omol b i - o k h b i i r a/-Cbiid, 101. 142b; Futiini, p . 4 . See also Shaykh, F i h r i s l , p . 157. Shaykh, ' U d d o , p . 248; 'Allima, Nihiiyat 01-wu$G/, fol. 200b. 'Abd al-Jalil al-Qazwini , p. 568.

See Mufid, S o r o w i y y a , p p . 222, 223; idem, TagbTb a / - i ' t i q z d , p.222; em, ' U k b o r i y y o , fol. 59a; idem, JowZib oh1 0 1 - v o ' i r , pp. 112, 116; idem, Rodd ' o l Z osbiib 01- ' o d o d , p. 24; Murtaoa, 01-Mawgiliyyo 01-thCIitho, 1.40a; idem, T o b b f i i y y z t , fol. 2 ; idem, a/-Rodd 'olC ogbzb 01-'odod, 1.130b: idem. IbtZI o l ' a r n a l bi-okhbCr aalZbiid, fol. 142b. See also haykh, C h o y b o , 6 . 3 ; idem, M o b s Z l , I , p . 2 ; idem, ' U d d a , pp. 54, 48; 'Abd al-Jalil al-Qazwini, pp. 529, 568. See Babra12Uliim, 11, p. 218. This name was invented by Ibn Fahd al-JJilli ( d . 84111437-8) in early thll5th century. See his 01-Muhadhdhob 0 1 - b i i r i ' , fol. 3a. See also his -Muqtagar, fol. 2a. In a letter to Ja'far b . Mubarnmad b . Qiilawayh ( d . 3691979-801, Ibn i 'Aqil permitted him to narrate his works (NajZshi , p. 3 8 ) . NajZshi, p. 38; AB, X I X , p. 69. He was in Naysahfir in 3401951-2 and enjoyed the respect of its people ufid, $ @ h F n i y y a , p. 17). One of his works is a book of answers he ve to the questions of the Buyid Mu'izz al-Dawld, who died in 3561967 a j i s h i , p . 301) .

36

A N INTRODUCTION TO SI-17'7 L W A

THE PERIODS OF

SHT'T

LW A

31

the author of Tohdhrb 01-ShT'o 1;-obkk 01-shorTca and aI-Afin~007 fi 'I-fiqh a/-Mufiommofi. Ibn Abi 'Aqil, who slightly preceded Ibn al-Junayd, was a koliim theologian. He may well be considered a precursor of the legal method of the kaliim theologians These scholars were, t h u s , nearly contemporaries.

val~dltyof okhbiir ool6tlifd a s a source of law' and because of t h l s , al-Mufid rang